Saturday, June 07, 2003

Yesterday's Virginia Supreme Court opinions (read at last)

In Atkins v. Commonwealth, following the Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002), the Virginia Supreme Court in an opinion by Justice Kinser determined that a new trial was necessary to determine whether Atkins was mentally retarded, and remanded the case to the circuit court in York County "for a hearing on the sole issue of whether
Atkins is mentally retarded as defined in" new Code sections 19.2-264.3:1.1(A) and 8.01-654.2, which were passed by the General Assembly this year in response to the Atkins case.

The new Code sections, contained in Acts 2003 c. 1031 (which includes the proviso that "an emergency exists and this act is in force from its passage"), contain the following provisions:

§ 8.01-654.2. Presentation of claim of mental retardation by person sentenced to death before the effective date of this section.

Notwithstanding any other provision of law, any person under sentence of death whose sentence became final in the circuit court before the effective date of this section, and who desires to have a claim of his mental retardation presented to the Supreme Court, shall do so by one of the following methods: (i) if the person has not commenced a direct appeal, he shall present his claim of mental retardation by assignment of error and in his brief in that appeal, or if his direct appeal is pending in the Supreme Court, he shall file a supplemental assignment of error and brief containing his claim of mental retardation, or (ii) if the person has not filed a petition for a writ of habeas corpus under subsection C of § 8.01-654, he shall present his claim of mental retardation in a petition for a writ of habeas corpus under such subsection, or if such a petition is pending in the Supreme Court, he shall file an amended petition containing his claim of mental retardation. A person proceeding under this section shall allege the factual basis for his claim of mental retardation. The Supreme Court shall consider a claim raised under this section and if it determines that the claim is not frivolous, it shall remand the claim to the circuit court for a determination of mental retardation; otherwise the Supreme Court shall dismiss the petition. The provisions of §§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a determination of mental retardation made pursuant to this section. If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.

If the person has completed both a direct appeal and a habeas corpus proceeding under subsection C of § 8.01-654, he shall not be entitled to file any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal court.

§ 19.2-264.3:1.1. Capital cases; determination of mental retardation.

A. As used in this section and § 19.2-264.3:1.2, the following definition applies:

"Mentally retarded" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in all of the following: conceptual adaptive skills, social adaptive skills and practical adaptive skills.

B. Assessments of mental retardation under this section and § 19.2-264.3:1.2 shall conform to the following requirements:

1. Assessment of intellectual functioning shall include administration of at least one standardized measure generally accepted by the field of psychological testing and appropriate for administration to the particular defendant being assessed, taking into account cultural, linguistic, sensory, motor, behavioral and other individual factors. Testing of intellectual functioning shall be carried out in conformity with accepted professional practice, and whenever indicated, the assessment shall include information from multiple sources. The Commissioner of Mental Health, Mental Retardation and Substance Abuse Services shall maintain an exclusive list of standardized measures of intellectual functioning generally accepted by the field of psychological testing.

2. Assessment of adaptive behavior shall be based on multiple sources of information, including clinical interview, psychological testing and educational, correctional and vocational records. The assessment shall include at least one standardized measure generally accepted by the field of psychological testing for assessing adaptive behavior and appropriate for administration to the particular defendant being assessed, unless not feasible. In reaching a clinical judgment regarding whether the defendant exhibits significant limitations in adaptive behavior, the examiner shall give performance on standardized measures whatever weight is clinically appropriate in light of the defendant's history and characteristics and the context of the assessment.

3. Assessment of developmental origin shall be based on multiple sources of information generally accepted by the field of psychological testing and appropriate for the particular defendant being assessed, including, whenever available, educational, social service, medical records, prior disability assessments, parental or caregiver reports, and other collateral data, recognizing that valid clinical assessment conducted during the defendant's childhood may not have conformed to current practice standards.

C. In any case in which the offense may be punishable by death and is tried before a jury, the issue of mental retardation, if raised by the defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.2, shall be determined by the jury as part of the sentencing proceeding required by § 19.2-264.4.

In any case in which the offense may be punishable by death and is tried before a judge, the issue of mental retardation, if raised by the defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.2, shall be determined by the judge as part of the sentencing proceeding required by § 19.2-264.4.

The defendant shall bear the burden of proving that he is mentally retarded by a preponderance of the evidence.

D. The verdict of the jury, if the issue of mental retardation is raised, shall be in writing, and, in addition to the forms specified in § 19.2-264.4, shall include one of the following forms:

(1) "We the jury, on the issue joined, having found the defendant guilty of (here set out the statutory language of the offense charged), and that the defendant has proven by a preponderance of the evidence that he is mentally retarded, fix his punishment at (i) imprisonment for life or (ii) imprisonment for life and a fine of $.........

Signed............foreman"

or

(2) "We the jury, on the issue joined, having found the defendant guilty of (here set out the statutory language of the offense charged) find that the defendant has not proven by a preponderance of the evidence that he is mentally retarded.

Signed.............foreman"

So, the constitutionality of these new code sections will be tested right away, I suppose.

In Green v. Commonwealth, the Court in another opinion by Justice Kinser affirmed the death penalty imposed on the defendant, where mental retardation was one of the issued raised at trial. The Court in Green rejected appellant's issues regarding failure to appoint an investigator, alleged limitations on discovery, failure to change venue, failure to use defendant's juror questionnaire, and denial of a mistrial despite a witness's reference to the "previous trial" of the defendant.

In Tanner v. State Corporation Commission, the Court in that rarest of cases granted in part the SCC's motion for rehearing and changed part of its earlier opinion in a case involving what is covered by the Virginia Securities Act.

In C.F. Trust, Inc. v. First Flight Limited Partnership, the Court answered certified questions from the Fourth Circuit, and concluded that "that there is no logical basis upon which to distinguish between a traditional veil piercing action and an outsider reverse piercing action," while noting that "[i]n Virginia, unlike in some states, the standards for veil piercing are very stringent, and piercing is an extraordinary measure that is permitted only in the most egregious circumstances."

In City of Suffolk v. Board of Zoning Appeals, in a bit of an upset perhaps, the Court in an opinion by Justice Agee sided with the BZA and the landowner in a vested rights case under Va. Code 15.2-2307. Justice Keenan dissented, joined by Chief Justice Hassell and Justice Koontz. Reading the opinion, the dissent is more consistent with what I thought was the difficult task of proving vested rights, but this was the unusual case where the BZA and the circuit court sided with the landowner (as opposed to an appeal brought by the landowner have lost at every step along the way), and the majority's opinion might be seen as primarily the result of deference to the BZA and the Circuit Court, than a bold new step in the substantive law.

In Lackman v. Long & Foster Real Estate, Inc., the Court in an opinion by Justice Lacy rejected appellant's arguments to avoid an arbitation award in a dispute between real estate brokers over real estate sales commissions. The opinion is a strong endorsement of the enforceability of arbitration awards. (Arbitration always seems like a great idea until the arbitrators rule against you.)

In Harris v. Commonwealth, the Court in an opinion by Justice Lacy reversed the Court of Appeals, concluding that the defendant was illegally detained beyond a mere traffic stop and the evidence found in the resulting search should have been suppressed. Justice Kinser and former Chief Justice Carrico dissented.

In GEICO v. Moore, the Court in an opinion by Justice Agee reversed Judge Keith of Fairfax County on a coverage question about the terms of an umbrella liability insurance policy, with regard to the injuries of a husband sustained while riding as a passenger with his wife driving. The Court held that the umbrella policy as a general liability insurance policy is not subject to the "omnibus clause" in the auto insurance statutes, and the language of the policy exclusion was not unenforceably vague.

In Fowler v. Winchester Medical Center, the Court in an opinion by Justice Lemons held that a wrongful death suit brought by a nonresident party who had no standing, not having qualified as a personal representative in Virginia or any other state, did not toll the statute of limitations, based on prior cases that held no standing, no tolling.